Closing Time

In a San Francisco courtroom today, lawyers for and against Proposition 8, the California referendum that banned same-sex marriage in the state, will be making their closing arguments in the landmark case Perry v. Schwarzenegger. It’s been a long wait. Judge Vaughn Walker heard twelve days of testimony in January, and then asked for some time to go through it on his own before he heard the lawyers’ summations, which will be handled by Ted Olson for the (pro-same-sex marriage) plaintiffs, and Charles Cooper for the antis.

This morning, I spoke with Olson’s partner on the case, David Boies, who was his opposing counsel in Bush v. Gore. (The strange-bedfellows aspect of the case has been one of the irresistible hooks for reporters.) Boies said he thought it likely that Judge Walker would issue his ruling in August—my own hunch is that he will rule for the pro-same-sex marriage side—and that either side would appeal immediately. Indeed, Boies and Olson hope the Perry case will be appealed all the way up to the Supreme Court, and that they will ultimately win a decision comparable to Loving v. Virginia, the 1967 Supreme Court case that declared laws against interracial marriage unconstitutional.

From the beginning, Judge Walker, who was nominated to the federal bench by George Bush senior, has been unusually clear about asking for a wide range of evidence on specific questions. As the trial draws near its close he’s still doing so. Earlier this month, for instance, Walker issued a list of thirty-nine questions—twelve each for the plaintiffs and the defendants and fifteen that applied to both sides—that he wanted addressed in closing arguments. He was rigorous with both sides, asking them to be explicit and factual in all their claims. With the Olson and Boies team, for example, he raised the question of how much the “voters’ honest beliefs” should bear on deciding the constitutionality of Proposition 8. And he wondered how the plaintiffs could square their claims that same-sex relationships “enjoyed the status of a fundamental right” with the relatively recent legal recognition of such relationships in the United States. Of the antis, he asked what the specific evidence was, “if any,” showing that Proposition 8 encourages the rearing of children by their married, biological mother and father. And since the Prop. 8 proponents had argued at various points that marriage existed primarily for the rearing of children, what was the evidence to show that same-sex couples were any different, constitutionally speaking, from heterosexual couples who couldn’t have children?

But while Walker was equally hard on both sides, Olson and Boies are in the better position to answer his questions, having already presented testimony that addressed them. Their side offered seventeen expert witnesses to the other side’s two. It’s hard to know what to make of that disparity—or of the fact that the anti-gay-marriage team’s star witness, David Blankenhorn, though an eloquent commentator on the state of the American family, is not someone who produces scholarly research on gays and lesbians or on gay marriage. If nothing else, the witness lineup suggests that it’s pretty hard to find academics who will testify to the dubious proposition that same-sex marriage somehow undermines traditional marriage, or that gays and lesbians make worse parents than heterosexual ones (a speculation that is directly contradicted by the studies that have been done on the subject). You could find such academics at Bible colleges, but they probably wouldn’t have the peer-reviewed studies to back them up, and their affiliation would be problematic if you were trying to argue that opposition to gay marriage isn’t about religion.

Boies said his team’s closing argument would include taped excerpts from his own witnesses’ testimony, as well as excerpts from Blankenhorn’s January testimony. Blankenhorn was a bit of a victim both of Boies’ cross-examination and of his own admirable tendency—in his writings—to allow the other side its due. The result was that Boies was able to read into the record some rather stirring evocations of the good that allowing same-sex marriage would accomplish—for the children of such couples, for American ideals of tolerance and equality—that had been written by one of the trial’s two witnesses against same-sex marriage. Evidently, we’ll be hearing them again today.